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End of transition period guidance: private children law
This guide forms part of our series of end of transition period guidance on private family law.
During the transition period, intra-EU disputes relating to children are decided under Brussels IIa Regulation. This provides for jurisdiction, recognition and enforcement of orders relating to parental responsibility.
This will remain the relevant law for proceedings instituted on or before the end of the Brexit transition period on 31 December 2020.
Any final order made in these proceedings will have automatic recognition and enforcement across the EU under Brussels II, even where the order is made in 2021 or later.
After the end of transition
Brussels IIa Regulation will not apply to proceedings instituted after 31 December 2020.
After the transition period ends, jurisdiction in private children cases will be based on national laws.
In England and Wales, the relevant ground is habitual residence and, for example, the relevant provisions of the Family Law Act 1986.
The overlay provisions of Brussels II on 1980 Hague Convention will also no longer apply.
The forum criteria in Brussels II will cease to apply.
However, in children cases, unlike divorce and maintenance, the jurisdiction of the habitual residence of the child is paramount.
Only in very exceptional circumstances will a state in which the child has habitual residence not have forum priority.
The 1980 and 1996 Hague Conventions apply to any international case.
Recognition and enforcement
Brussels IIa will no longer apply in England and Wales.
The 1996 Hague Convention on Parental Responsibility orders, which to a large degree emulate Brussels IIa Regulation, will be the relevant instrument.
The differences between the two instruments are largely based on the:
- absence of a timeline for resolving child abduction cases, and the exclusion of a second attempt provision once child abduction provisions have been concluded in 1996 Hague Convention
- point at which habitual residence applies
- recognition and enforcement of orders relating to parental responsibility
For practitioners who consider it important to rely instead on Brussels IIa Regulation, proceedings should be instituted before the end of the transitional period.
Amendments of the various statutory provisions by the Regulations will allow the courts in this jurisdiction to recognise and enforce orders made in an EU member state.
The Ministry of Justice has published guidance on recognition and enforcement.
Distinctive provisions apply in respect of public law children matters, and Brussels IIa Regulation is often relied on by local authorities in the placement of children in other EU countries.